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Sunday, June 30, 2013

Adoptive Couple v. Baby Girl (2 of 4): 3/256th Cherokee?

This case has been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series (part 1 is here), co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the post is a product of our collective views. This post address race, tribal enrollment, and Indian authenticity.

Baby Veronica’s mother is “predominantly Hispanic” and her father has only a small fraction of Cherokee ancestry. Legally, his fraction of ancestry doesn’t matter; only his tribal enrollment does. But the very first sentence of Justice Alito’s opinion describes Veronica as “1.2% (3/256) Cherokee,” underscoring the anxiety about race that has pervaded the case. The father has only a distant Cherokee ancestor - isn’t he more white than Indian? Sure, he is enrolled in the tribe, but how can “one drop of blood . . . trigger[] all these extraordinary rights?” (asked Justice Roberts during the argument). Why should the child’s ties to her Cherokee heritage be privileged over her Hispanic heritage, especially if she is fractionally more Hispanic than Cherokee? It is these racial anxieties, rather than the law itself, that seem to drive the majority opinion as well as the media coverage of the case. As Will Baude points out, neither the majority nor the concurrence has much in the way of express discussion of equal protection concerns. But the briefs, the oral arguments, and the references to fractional ancestry that peppered the majority opinion suggest these kinds of questions lurked just below the surface.

The short answer is that Indianness, especially in the form of formal enrollment in a tribe, is a political classification, not just a designation of race, heritage, or culture. I have written elsewhere about how to make sense of the “racial v. political” dichotomy that that seems to trouble many people about Indian law. In my view, it makes no sense to claim that Indianness has nothing at all to do with race and racism, but it is equally a mistake to suggest that the specter of race renders it less of a political status in the sense that the term is used to denote a particular legal history in which the federal government has treated Indian tribes as separate nations and has assumed unique powers to legislate with respect to tribes and indigenous people. (Bethany Berger and Sarah Krakoffhave also written about this interplay.) Indian tribes have a different relationship with the federal government than any other group, a relationship based largely on treaties and recognition of nationhood. That is why Veronica’s Cherokee-ness matters in a way that her Hispanic-ness does not.

The term “Indian” has various definitions in different areas of federal law. In general, though, legal Indianness requires indigenous ancestry (descent from a group indigenous to what is now the United States) and some kind of political recognition. There are certainly areas of Indian law that spur debates about what qualifies as political recognition, but this is not one of them. As noted above, the definition of Indian here is clear, and it is clearly tied to tribal enrollment. Of all the possible indicia of Indianness, formal enrollment in a tribe is the most clearly “political” because it refers to national citizenship. Yet even enrollment-based distinctions raise concerns because most tribal enrollment rules require a demonstration of ancestry. Ancestry in tribal enrollment rules serves a different function than simply being “a proxy for race,” though. It is a nod to the kinship relations that form the basis of most tribes, and it is an indicator of indigeneity. As Justice Sotomayor points out in her dissent, the majority’s frequent references to the tribe’s reliance on descent and its “second-guess[ing]” of the tribe’s membership requirements are ironic in light of the fact that federal regulations require that all members demonstrate “descent from a historical Indian tribe” as a condition for tribal acknowledgement.

But the anxiety runs even deeper. The Cherokee Nation is one of a handful of tribes that require only lineal descendancy to enroll. Many tribes require a certain degree of ancestry (called “blood quantum”), and some impose additional requirements (the most recent study of enrollment rules is here). Most often, tribes are criticized for this use of blood quantum in their enrollment criteria. The criticism is both external (by requiring that members possess a certain percentage of “Indian blood,” tribes are injecting race into their citizenship criteria) and internal (minimum blood quantum requirements are partly the product of federal influence and reflect a campaign to ensure that “real” Indians will eventually disappear). (For more about the history of blood quantum, I suggest starting with Paul Spruhan and J. Kehaulani Kauanui.) The Cherokee Nation does not require members to have any specific blood quantum; members must instead demonstrate descent from a person on the historical tribal rolls. Instead of being cheered for removing race from its enrollment criteria, however, it is chided for relying on nothing but race - and only an “insignificant” fraction at that. (Similar concerns surrounded the use of ancestry in Rice v. Cayetano. Ironically, Justice Roberts argued that case for the state - the party relying on ancestry - yet he may be the current Justice most concerned with the use of ancestry in Indian law.)

Tribes can’t win here. If they require a specific percentage of Indian blood, they are relying on race. If they require only descent, their members aren’t really Indians (see Alex Pearl’s recent post). If they do not require descent, they are no longer indigenous. At the oral argument, Justice Roberts was also concerned about the possibility that ICWA could apply based on only enrollment, but not ancestry. He asked about a “hypothetical tribe” with a “zero percent blood quantum” that is “open for, you know, people who want to apply, who think culturally they’re a Cherokee or - and number of fundamentally accepted conversions.” And if you are paying close attention, you know that the Cherokee Nation is the same tribe being sued for removing freedmen from its rolls because - according to the tribe - they lack indigenous ancestry. (Of course, it is far more complicated, but this isn’t a post about the Cherokee freedmen.) I chose the term “racial anxieties” carefully because that is exactly what plagues Indian law. The problem is that the Justices (and the public) don’t know how to think about race and Indian law. Is it too racial? Is it not racial at all? Is it not racial enough? And what is race anyway?

That the law itself remains intact is no small victory. The brief for the guardian ad litem in this case advocated a reinterpretation of ICWA that would demand some additional “non-biological” demonstration of Indianness (presumably besides tribal enrollment), arguing that the law is unconstitutional otherwise (see here for a discussion of how this argument has surfaced in other ICWA cases). The attorney for the GAL, Paul Clement, recently attacked the constitutionality of Indian legislation in another area. Given Clement’s track record before the Court, tribes are rightly concerned that these lingering racial anxieties could damage tribal rights even more than they did here.

Comments

Race and descent aren't the only options. If "the term [Indian] is used to denote a particular legal history in which the federal government has treated Indian tribes as separate nations and has assumed unique powers to legislate with respect to tribes and indigenous people," then perhaps it would make the most sense to apply Indian law based on whether one of the parties to case actually has lived within that separate nation, regardless of her race or descent.

The history of governmental abuses toward indigenous families seems to have been about treating indigenous culture as inferior to the majority culture. In this view, a child was presumed to be better off raised by a two-parent, Christian, only-English-speaking couple with a white picket fence in the suburbs, rather than by a network of relatives who will expose the child to indigenous language, religion, etc.

In the case of Adoptive Couple v. Baby Girl, it's hard to see how allowing the adoption manifests disfavor toward indigenous culture. Taking away a child who had been raised on a reservation but had zero genetic connection with the tribe seems like far more of a blow to the Cherokee Nation's status as a separate nation, than the adoption of a baby who can trace her descent from enrolled tribe members or who is even 50% Cherokee by blood but had zero exposure to the tribe.

While the father in this case seems to have had a real relationship with the mother before she got pregnant, despite his absence thereafter, it's bizarre to have a different law for a non-indigenous woman's ability to give up for adoption the baby who resulted from a one-night-stand, based on whether that random guy she hooked up with happens to be enrolled in a tribe or not.

Thank you for pointing this out. There are many possible ways to define both tribal membership and legal Indianness. Tribes all over the country are wrestling with this very question as many consider changes to their enrollment criteria. Residence on the reservation has been used in the past and is still used by some tribes now, but it is also an imperfect proxy for tribal ties, especially in light of modern mobility and the limited economic opportunity on many reservations. Further complicating things, the Supreme Court has held in the past that a white person who had been adopted by the Cherokee Nation and lived on the reservation did not count as an "Indian" under one federal law because he had no genetic connection to the tribe. Given the range of factors that may matter (and the layers of stereotypes out there about Indians - see Alex Pearl's post linked above), the tribes themselves are in the best position to determine who is part of the community. This is precisely why Indian law scholars and attorneys are alarmed when non-tribal courts seek to add their own additional requirements.

Posted by: ACR | Jun 30, 2013 6:06:24 PM

If I'm thinking of the same Supreme Court cases that you are (ones that long predate ICWA), those were instances of white people's trying to assert a claim of Indian-ness in order to obtain an economic benefit that would reduce the level of benefit available to Indians. That seems like a very different situation than what I posited, i.e. whether a tribe should be able to prevent a state government from authorizing the removal of a child who was raised within the tribe.

Pearl's post does a good job asserting what it means for a tribe to be a nation instead of being viewed in racialized term. And to that extent, it makes sense that tribal courts should make these decisions. However, this view of the Cherokee tribe as a sovereign nation ignores what the bounds of a nation properly ought to be. I don't know of any case in international law where the government and courts of Nation A could decide the fate of a child conceived and born in Nation B to a woman who is a citizen only of Nation B. Even for a state like Israel, for which the preservation of a threatened ethnicity/culture is a paramount value, that kind of assertion of sovereignty, over children born outside their borders and for whom at least one parent isn't Jewish or Israeli, would be radical.

The injustices that Congress notes in the ICWA ("Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies... the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families") don't seem relevant to the Adoptive Couple v. Baby Girl case.

Veronica wasn't torn away from the care of a Cherokee grandmother or cousin to be given to a white family. Notwithstanding the general snotty attitude of Alito's opinion, it's a meaningful distinction between this case and unjust past practices that no Cherokee citizen had ever had custody of Veronica, or apparently even so much as held Veronica, before she went to her adoptive parents. Neither the adoptive family nor the government seems to have been trying to trick the father into giving up his rights. Nor was he apparently any more vulnerable to the loss of parental rights than any other military guy in a contentious relationship.

Also, it seems unfair to say, as you did in a prior post, that referring to Veronica as Hispanic on the adoption forms was a "misstatement." It may have been done in an attempt to mislead government actors, but one part of her identity ought not to blot out another, particularly given that Hispanic culture in the U.S. (e.g. speaking Spanish, and in some parts of the country even being Catholic) is hardly favored by the white Protestant/evangelical mainstream.

I agree completely with PG's thoughtful posts, and would add only one factual point, related to the question of whether there was an attempt to "misstate" Veronica's race/ethnicity. If you look at the actual document in the now-unsealed record, Veronica was listed as Hispanic/Native American Indian/Caucasian. Hispanic was then circled by hand, presumably when someone processing the form in OK asked which was her predominant ethnicity -- and the child is, as all acknowledge, predominantly Hispanic.